What if Delhi gang rape juvenile convict hasn’t been reformed?

Shortcomings in Juvenile Justice Act exposed after a controversy over imminent release of rapist.

Students protest against the gang-rape of a 23-year-old woman on a moving bus on December 16, 2012, in New Delhi. (HT Photo)

The Centre’s request to the Delhi High Court on Monday to extend the lone juvenile convict’s stay in a “safe home” in connection with the December 16 gang rape case has once again exposed the shortcomings in the Juvenile Justice Act--often criticised for its pro-delinquent tilt.

The Juvenile Justice Board’s order to release the convict--now a 21-year-old adult--on December 20 is based on the presumption that he has reformed after staying in a reform home as required under the Act.

But what if he hasn’t been reformed to be re-integrated into the mainstream of society? In fact, the law doesn’t envisage such a situation. Rather, it presumes that the juvenile delinquent has been reformed.

The Act does not even use the term “convict” for a juvenile delinquent found guilty of an offence. It uses the expression “juvenile in conflict with law”.

BJP leader Subramanian Swamy, who has moved the High Court against his release, contended that a Home Ministry report said this juvenile had not reformed. Worse, he got radicalised by his association with another juvenile convicted of involvement in the 2011 Delhi High Court blast case, Swamy claimed.

Days before Swamy filed his petition, the victim’s parents wrote to the National Human Rights Commission and the Centre apprehending that if freed, he would pose danger to the society.

This is not an isolated case where a juvenile guilty of a heinous crime such as rape and murder has benefited from benevolent provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 that does not permit treating minor offenders on a par with adults for trial and punishment.

In July 2014, a Mumbai court sent two minors convicted in the Shakti Mill gang-rape case to a Nashik school for three years to learn “good behaviour”. There are many more such cases.

But the JJ Act, 2000 does not distinguish between a petty offence and a serious crime. Many western countries try juveniles accused of serious crimes as adults. But Indian law fails to take into account the present day ground reality.

Juvenile crime graph is rising at an alarming rate in India. According to the National Crime Records Bureau (NCRB), 48,230 juveniles were apprehended for various offences during 2014. Of these 36,138 were in the age group of 16-18 years. Of the total 2,144 juveniles allegedly involved in rape, 1,488 were in the age group of 16-18 years. Similarly, of the 1,163 juveniles accused of murder, 844 belonged to 16-18 years age group.

Victims of juvenile crimes often feel cheated as the JJ Act, 2000 appears tilted towards offenders below 18. It is based on the UN Convention on Child Rights, 1989, which says everybody should be treated as a child up to 18 years. But the Convention also indicates it could be changed if national laws recognise a lower age limit for juveniles. Before the 2000 Act, boys below 16 and girls below 18 were considered juveniles.

Noting that involvement of juveniles in heinous crimes such as murder and rape was increasing, the SC on April 6, 2015 asked the Centre to take a re-look at the juvenile law and make it more deterrent at least in respect of grave offences. A message has to be sent that the victim’s life was equally important under the rule of law, the court had had said.

One possible solution could be prescribing higher punishment for juveniles convicted of heinous crimes or creating a separate category of minors between 16 and 18 years and trying them like adults at least in serious offences.

The new JJ Bill will permits juveniles between the ages of 16-18 years to be tried as adults for heinous offences. But one can only wait until it was translated into a law.